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Rule 21. Motions (Dec.1941)

TEXT

The clerk shall keep a motion docket in which he shall enter every motion filed in his court, the names of the parties and their attorneys, a brief statement of the nature of the motion, and the number of the suit in which it is made if it relates to a pending suit. Service of notice on a party may be made, when necessary, either by the proper sheriff or constable or by any person competent to testify, and may be served in like manner as an original writ, either upon the party or his attorney of record. The return of such notice when made by such officer, or other person with verification by his affidavit, shall be prima facie evidence of the fact of service. If the time of service is not elsewhere prescribed, the adverse party is entitled to three days' notice of a motion not relating to a pending suit, and such motions shall be taken up and disposed of in their order as other suits are required to be. Notice of a motion in a suit pending is given by filing the motion and its entry in the motion docket during the term, and such motion which does not go to the merits of the case may be disposed of at any time before the trial of the case.

Amended by order of Sept. 20, 1941, eff. Dec. 31, 1941: The third sentence has been clarified.

ADVISORY OPINIONS

(No. 59) Question: Under the Rule 169 of the Rules of Civil Procedure, assume that a party is delivered a proper request for ad­missions of fact and does not reply to the same within the time stipulated, and as­sume further that five days prior to the time that the party has to make his reply his attorney files a motion in the court papers for a ten day extension of time to file a reply and no other notice is given to the adverse party of the filing of such mo­tion, and no action is taken on the motion at the time, and no other motion for an ex­tension of time is made, would the court at the trial of the case over three months thereafter have any authority to permit such party to file a reply to the request for admissions?

Answer: We consider that the court would, under the circumstances at hand, have authority, in the exercise of its dis­cretion, to permit the reply to be filed un­less the motion were so worded as not to contemplate an extension at so late a time, and that it would likewise, of course, have the discretion to refuse such permis­sion. Rule 169 gives such authority on motion and notice. Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the mo­tion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk. In the fact situation which is sup­posed in the question, the party demand­ing the admission has a clear remedy. It is to be expected that within the ten days allowed by Rule 169 he will have come into possession of a copy either of the sworn statement or else of the motion to enlarge the time for filing the sworn statement, because Rule 72 requires the transmission of a copy of any paper of that kind and Rule 73 puts the party in default of that duty in danger of having to pay for a certified copy. If at the end of the ten days' time the party demand­ing the admission receives no copy what­ever, he very naturally should resort to the papers to ascertain whether any paper has been filed. If, instead of a sworn state­ment as required by Rule 169, he en­counters a motion for enlargement of time, as is permitted by such. Rule, he may thereupon request the court to hear the motion, and he may persist in his request until it is heard. Since the efficacy of this whole proceeding is largely de­pendent upon its completion before the trial commences, it is, of course, to be hoped that the demandant would thus protect himself. The discretion of the court in such a case should be exercised to the end of requiring as prompt a filing of the sworn statement as the circumstances may justify.

It should be added that, in the event respondent's motion is ineffective on ac­count of its wording, a second though more onerous motion could be urged and granted under Rule 169 and subdivision (b) of Rule 5.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).